IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-279
Filed: 1 March 2016
Forsyth County, Nos. 13 CRS 10929-31, 55189-90
STATE OF NORTH CAROLINA
v.
DONALD LEE CURTIS
Appeal by defendant from judgments entered 12 March 2014 by Judge Ronald
E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals
23 September 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General Katherine A.
Murphy, for the State.
Patterson Harkavy LLP, by Narendra K. Ghosh, for defendant-appellant.
McCULLOUGH, Judge.
Donald Lee Curtis (“defendant”) appeals from judgments entered in
accordance with a sentencing agreement reached after a jury found him guilty on one
count of attempted robbery with a firearm, one count of possession of a firearm by a
felon, one count of first-degree burglary of a dwelling house, two counts of robbery
with a firearm, two counts of assault with a deadly weapon, and two counts of second-
degree kidnapping. For the following reasons, we find no error.
I. Background
STATE V. CURTIS
Opinion of the Court
In the early morning hours of 30 April 2013, three armed black males, two with
handguns and one with a shotgun, busted through the door of a residence at 2400
Harper Road in Clemmons where Megan Martin and Refeigo Pina lived. At the time
of the break in, Christopher Cowles and Justin Collins were also at the residence.
Cowles was with Pina in the downstairs living room where the intruders entered
learning how to play Pina’s guitar. Justin Collins and Martin were asleep in the
upstairs bedroom.
As the intruders entered, they asked where Collins was, instructed each other
to get the cell phones, and ordered Cowles and Pina to put their hands up. Cowles
attempted to quickly dial 911 before he tossed his cell phone to the side of the couch
that he and Pina were sitting on. The intruders did not get either Cowles’ or Pina’s
cell phones. Cowles recognized the two intruders with handguns (the “other
intruders”) and inquired why they were doing what they were doing. The third
intruder, whom Cowles did not know but whom Cowles was later able to identify as
defendant with 100% certainty, then placed his shotgun in Cowles’ face and
threatened to shoot Cowles if Cowles was not quiet. Pina was held at gunpoint by
one of the other intruders while the third intruder looked around for Collins. Upon
repeated questioning concerning Collins’ whereabouts, Cowles told the intruders that
Collins was upstairs.
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Opinion of the Court
The intruders then ushered Cowles and Pina upstairs with guns to their backs.
Cowles and Pina did not go upstairs voluntarily. Once upstairs, Cowles cut the lights
on and tapped Collins on the foot to wake him up. As Collins was waking up, one of
the other intruders pulled the covers back and struck Collins on the side of the head
with a handgun. Martin was awakened by the commotion and was frantic. The
intruders directed Cowles, Pina, Collins, and Martin into the corner of the bedroom
and told them not to move. As they were moving to the corner, one of the other
intruders struck Pina in the face with a handgun.
Defendant held the shotgun pointed towards Cowles, Pina, Collins, and Martin
while the other intruders tore the bedroom apart. The other intruders took Collins’
cellphone and wallet with approximately $2,000 in it from the nightstand, took cash
from Martin’s purse, and took Martin’s iPhone from the dresser.
The other intruders then instructed defendant to stay with Cowles, Pina,
Collins, and Martin as the other intruders went back downstairs. Cowles could hear
lots of banging and smashing downstairs, like things were being destroyed.
Defendant stayed at the top of the stairs with the shotgun pointed at Cowles, Pina,
Collins, and Martin to keep them from moving for several minutes before telling them
not to move and backing down the stairs. The intruders then fled from the apartment,
slashing tires on Cowles’, Pina’s, Collins’, and Martin’s vehicles upon their exit. In
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Opinion of the Court
addition to the items taken from upstairs, the intruders took a PlayStation 3, Pina’s
guitar, and car keys from downstairs.
Besides Cowles’ identification of defendant, both Collins and Martin were
100% certain that defendant was the intruder with a shotgun. Collins recognized
defendant from time they spent incarcerated together.
Based on the events of 30 April 2013, defendant was arrested and later indicted
by a Forsyth County Grand Jury on 23 September 2013 on three counts of robbery
with a dangerous weapon, one count of attempted robbery with a dangerous weapon,
two counts of second-degree kidnapping, one count of possession of a firearm by a
felon, one count of first-degree burglary, and two counts of assault with a deadly
weapon. Defendant’s case came on for trial in Forsyth County Superior Court before
the Honorable Judge Ronald E. Spivey on 10 March 2014.
At the conclusion of defendant’s trial the jury returned verdicts finding
defendant guilty on all charges except the one count of robbery with a dangerous
weapon related to Pina. In accordance with a sentencing agreement reached between
defendant and the State, the trial court consolidated defendant’s nine convictions into
three Class D felonies and sentenced defendant at the top of the presumptive range
for each felony with a prior record level VI to three consecutive terms of 128 to 166
months imprisonment. The judgments were entered on 12 March 2014. Defendant
gave notice of appeal in open court following sentencing.
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Opinion of the Court
II. Discussion
At the close of the State’s evidence, defendant moved to dismiss all of the
charges and the trial court denied defendant’s motion. Defendant then renewed his
motion after he decided not to put on any evidence in his own defense. The trial court
again denied defendant’s motion. Now on appeal, the only issue is whether the trial
court erred in denying defendant’s motion to dismiss the kidnapping charges.1
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62,
650 S.E.2d 29, 33 (2007). “ ‘Upon defendant’s
motion for dismissal, the question for the Court is whether there is substantial
evidence (1) of each essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant’s being the perpetrator of such offense. If so,
the motion is properly denied.’ ” State v. Fritsch,
351 N.C. 373, 378,
526 S.E.2d 451,
455 (quoting State v. Barnes,
334 N.C. 67, 75,
430 S.E.2d 914, 918 (1993)), cert.
denied,
531 U.S. 890,
148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant
1 In the event we determined defendant’s general motions to dismiss at trial did not preserve
this issue for appeal, defendant additionally asserts an ineffective assistance of counsel argument.
The State, however, specifically responds that “[it] does not dispute that [d]efendant preserved this
issue for review.” Upon review of the record, we think there is a question whether defendant’s motions
preserved this specific issue for appeal. Yet, given that the State concedes the issue is preserved and
defendant has asserted an ineffective assistance of counsel argument in the alternative, we invoke
Rule 2 of the North Carolina Rules of Appellate Procedure out of an abundance of caution and address
the merits of the issue. See State v. Marion, __ N.C. App. __, __, 756 S.E.2d 61, 67-68, disc. rev. denied,
367 N.C. 520,
762 S.E.2d 444-45 (2014) (electing to review the defendant’s sufficiency of the evidence
argument pursuant to Rule 2 where the issue was not preserved for appeal but defendant also brought
forward an ineffective assistance of counsel claim based on her trial counsel’s failure to make a motion
to dismiss).
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STATE V. CURTIS
Opinion of the Court
evidence as a reasonable mind might accept as adequate to support a conclusion.”
State v. Smith, 300 N.C. 71, 78-79,
265 S.E.2d 164, 169 (1980). “In making its
determination, the trial court must consider all evidence admitted, whether
competent or incompetent, in the light most favorable to the State, giving the State
the benefit of every reasonable inference and resolving any contradictions in its
favor.” State v. Rose,
339 N.C. 172, 192-93,
451 S.E.2d 211, 223 (1994), cert. denied,
515 U.S. 1135,
132 L. Ed. 2d 818 (1995).
In North Carolina, any person who unlawfully confines, restrains, or removes
from one place to another, any other person sixteen years old or older without the
consent of such person is guilty of kidnapping if the confinement, restraint, or
removal is for a purpose enumerated in the statute, including “[f]acilitating the
commission of any felony or facilitating flight of any person following the commission
of a felony[.]” N.C. Gen. Stat. § 14-39(a) (2015). “If the person kidnapped was
released in a safe place by the defendant and had not been seriously injured or
sexually assaulted, the offense is kidnapping in the second degree . . . .”
N.C. Gen.
Stat. § 14-39(b).
Recognizing potential double jeopardy concerns in cases where the restraint
necessary for kidnapping, that is “a restriction, by force, threat or fraud, without a
confinement[,]” State v. Fulcher, 294 N.C. 503, 523,
243 S.E.2d 338, 351 (1978), is
essential to other charges, our Supreme Court explained as follows:
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Opinion of the Court
It is self-evident that certain felonies (e.g., forcible rape and
armed robbery) cannot be committed without some
restraint of the victim. We are of the opinion, and so hold,
that [N.C. Gen. Stat. §] 14-39 was not intended by the
Legislature to make a restraint, which is an inherent,
inevitable feature of such other felony, also kidnapping so
as to permit the conviction and punishment of the
defendant for both crimes. To hold otherwise would violate
the constitutional prohibition against double jeopardy. [To
avoid the constitutional issue], we construe the word
“restrain,” as used in [N.C. Gen. Stat. §] 14-39, to connote
a restraint separate and apart from that which is inherent
in the commission of the other felony.
On the other hand, it is well established that two or more
criminal offenses may grow out of the same course of
action, as where one offense is committed with the intent
thereafter to commit the other and is actually followed by
the commission of the other (e. g., a breaking and entering,
with intent to commit larceny, which is followed by the
actual commission of such larceny). In such a case, the
perpetrator may be convicted of and punished for both
crimes. Thus, there is no constitutional barrier to the
conviction of a defendant for kidnapping, by restraining his
victim, and also of another felony to facilitate which such
restraint was committed, provided the restraint, which
constitutes the kidnapping, is a separate, complete act,
independent of and apart from the other felony.
Id. at 523-24, 243 S.E.2d at 351-52. Thus, in Fulcher, the Court held there was “no
violation of the constitutional provision against double jeopardy in the conviction and
punishment of the defendant for . . . two crimes against nature and also for . . . two
crimes of kidnapping[,]”
id. at 525,
243 S.E.2d at 352, because
[t]he evidence for the State [was] clearly sufficient to
support a finding by the jury that the defendant bound the
hands of each of the two women, procuring their
submission thereto by his threat to use a deadly weapon to
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Opinion of the Court
inflict serious injury upon them, thus restraining each
woman within the meaning of [N.C. Gen. Stat. §] 14-39,
and that his purpose in so doing was to facilitate the
commission of the felony of crime against nature.
Id. at 524, 243 S.E.2d at 352. The Court further explained that, based on the
evidence, “the crime of kidnapping was complete, irrespective of whether the then
contemplated crime against nature even occurred[,]” and “[t]he restraint of each of
the women was separate and apart from, and not an inherent incident of, the
commission upon her of the crime against nature, though closely related thereto in
time.”
Id.
“In accordance with [the Court’s] analysis of the term ‘restraint’ [in Fulcher],
[the Court later] construe[d] the phrase ‘removal from one place to another’ [in N.C.
Gen. Stat. § 14-39] to require a removal separate and apart from that which is an
inherent, inevitable part of the commission of another felony.” State v. Irwin,
304
N.C. 93, 103,
282 S.E.2d 439, 446 (1981). The analysis applies equally to
“confinement” in
N.C. Gen. Stat. § 14-39, which “connotes some form of imprisonment
within a given area, such as a room, a house or a vehicle.” Fulcher,
294 N.C. at 523,
243 S.E.2d at 351. More recently, the Court has explained that
in determining whether a defendant's asportation of a
victim during the commission of a separate felony offense
constitutes kidnapping, [a trial court] must consider
whether the asportation was an inherent part of the
separate felony offense, that is, whether the movement was
“a mere technical asportation.” If the asportation is a
separate act independent of the originally committed
criminal act, a trial court must consider additional factors
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Opinion of the Court
such as whether the asportation facilitated the defendant's
ability to commit a felony offense, or whether the
asportation exposed the victim to a greater degree of
danger than that which is inherent in the concurrently
committed felony offense.
State v. Ripley, 360 N.C. 333, 340,
626 S.E.2d 289, 293-94 (2006).
In the present case, defendant was convicted of kidnapping Cowles and Pina.
Defendant now contends the trial court erred by not dismissing the kidnapping
charges for insufficiency of the evidence because Cowles and Pina were moved and
restrained only to the extent required for the armed robberies. Specifically,
defendant asserts that “[a]ll restraint and movement of Cowles and Pina occurred
during the course of the robberies and was integral to the robberies. There was no
independent restraint or removal that could support [defendant’s] convictions for
kidnapping Cowles and Pina.”
In addition to Fulcher, supra, defendant relies on a number of cases in which
our appellate courts have overturned kidnapping convictions. The facts are
important in each case.
In Irwin, the defendant was convicted of first degree felony murder, attempted
armed robbery, and kidnapping after a failed robbery of a drugstore occupied by the
owner and an employee. 304 N.C. at 95,
282 S.E.2d at 442. Pertinent to the present
case, during the course of the attempted robbery, the defendant’s accomplice “forced
[the employee] at knifepoint to walk from her position near the . . . cash register to
the back of the store in the general area of the prescription counter and safe.”
Id. at
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Opinion of the Court
103, 282 S.E.2d at 446. On appeal, defendant challenged the trial court’s denial of
his motion to dismiss the kidnapping charge and the Court reversed, noting that “[a]ll
movement occurred in the main room of the store[]” and holding that “[the employee’s]
removal to the back of the store was an inherent and integral part of the attempted
armed robbery[]” because “[t]o accomplish [the] defendant’s objective of obtaining
drugs it was necessary that either [the owner] or [the employee] go to the back of the
store to the prescription counter and open the safe.”
Id. Thus, the removal of the
employee “was a mere technical asportation and insufficient to support conviction for
a separate kidnapping offense.”
Id.
In State v. Ripley, the defendant was convicted of seven counts of robbery with
a firearm, three counts of attempted robbery with a firearm, and fifteen counts of
second-degree kidnapping after a crime spree that included the armed robbery of a
an Extended Stay American Motel and patrons. 172 N.C. App. 453, 453-54,
617
S.E.2d 106, 107 (2005), aff’d.,
360 N.C. 333,
626 S.E.2d 289 (2006). The evidence in
Ripley pertinent to the present case was that the defendant and an accomplice waited
in a vehicle outside the motel while three other accomplices entered the lobby of the
motel and ordered the front desk clerk to empty the cash drawer.
Id. at 454,
617
S.E.2d at 107-08. The robbers then asked about surveillance and the clerk led one of
the robbers to the break room where the clerk handed over what she believed to be
the surveillance tape.
Id. at 454-55,
617 S.E.2d at 108. The robbers then ordered the
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Opinion of the Court
clerk to return to the front desk and “act normal” while the robbers hid as a group of
patrons arrived. Id. at 455,
617 S.E.2d at 108. When the clerk attempted to flee the
desk area, the robbers leapt out, demanded money from the patrons, and ordered the
patrons to the floor.
Id. As this was occurring, a second group of patrons approached
the lobby doors, noticed the robbery in progress, and attempted to walk away.
Id.
One of the robbers saw the second group of patrons, forced them to enter the lobby,
and robbed them.
Id. On appeal to this Court, the defendant argued the trial court
erred in denying his motions to dismiss the kidnapping charges related to the first
group of patrons, the second group of patrons, and the motel clerk on the bases that
the kidnappings were not separate from the robberies and the charges violated double
jeopardy.
Id. at 457-61,
617 S.E.2d at 109-11. Upon review, this Court recognized
that “ ‘the key question in a double jeopardy analysis is whether the kidnapping
charge is supported by evidence from which a jury could reasonably find that the
necessary restraint for kidnapping exposed the victim to greater danger than that
inherent in the underlying felony itself.’ ”
Id. at 457,
617 S.E.2d at 109 (quoting State
v. Muhammad,
146 N.C. App. 292, 295,
552 S.E.2d 236, 237 (2001)) (brackets
omitted). This Court then reversed the defendant’s kidnapping convictions, holding
that the first group of patrons was not exposed to any danger greater than that
inherent in the robberies for which the defendant was convicted, id. at 458,
617 S.E.2d
at 109-10, the second group of patrons “had already been exposed to the danger
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Opinion of the Court
inherent in the robbery as they approached the [m]otel door[]” and “their movement
into the [m]otel lobby [was nothing] more than a mere technical asportation also
inherent in the armed robbery[,]” id. at 459,
617 S.E.2d at 110 (internal quotation
marks omitted), and the movement of the clerk to the break room did not expose the
clerk “to a danger greater than and independent from that inherent in the robbery
for which [the] defendant was already convicted.”
Id. at 460-61,
617 S.E.2d at 111.
On appeal to our Supreme Court from a dissent in this Court’s Ripley opinion
on the issue of whether the forced movement of the second group of patrons into the
motel lobby could sustain a separate kidnapping conviction, our Supreme Court
affirmed this Court’s decision, concluding “the asportation of the [second group of
patrons] from one side of the motel lobby door to the other was not legally sufficient
to justify [the] defendant's convictions of second-degree kidnapping[]” because “[t]he
moment [the] defendant's accomplice drew his firearm, the robbery with a dangerous
weapon had begun. The subsequent asportation of the victims was ‘a mere technical
asportation’ that was an inherent part of the robbery defendant and his accomplices
were engaged in.” Ripley, 360 N.C. at 340,
626 S.E.2d at 294.
In State v. Cartwright, the defendant was convicted of first-degree kidnapping,
armed robbery, first-degree rape, and other offenses based on evidence tending to
show that when the victim opened her house door, the defendant grabbed the victim’s
arm and forced the victim back into her kitchen, pulled a knife out of his pocket,
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Opinion of the Court
demanded money, put the knife back in his pocket and attempted to choke the victim
with a towel, struggled with the victim from the kitchen, through a hallway, and into
the den, knocked the victim to the floor, attempted to smother the victim with a
pillow, raped the victim, demanded money again, followed the victim down a hallway
to the victim’s bedroom where the victim gave the defendant a dollar, and then fled
the victim’s house. 177 N.C. App. 531, 532-33,
629 S.E.2d 318, 320-21, disc. rev.
denied,
360 N.C. 578,
635 S.E.2d 902 (2006). On appeal, the defendant challenged
the trial court’s denial of his motion to dismiss the kidnapping charge for insufficient
evidence and raised a double jeopardy argument. Id. at 534,
629 S.E.2d at 321.
Addressing the trial court’s denial of the defendant’s motion to dismiss, this Court
vacated the kidnapping conviction, explaining as follows:
With regards to armed robbery . . .[,] [t]he victim's
movement down the hallway is a mere asportation because
the armed robbery began when defendant showed the knife
to the victim in the kitchen and demanded money, and [the]
defendant's movement between the kitchen, den, and
bedroom did not expose the victim to a greater degree of
danger. . . .
With regards to rape, [the] defendant began and concluded
the rape in the den. Because the crime of rape occurred
wholly in the den, we find that there was insufficient
evidence of confinement, restraint, or removal.
Id. at 537,
629 S.E.2d at 323. Although this Court explicitly stated it would not
address the defendant’s double jeopardy argument because it vacated the kidnapping
charge due to insufficiency of the evidence,
id., it is clear from the Court’s explanation
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Opinion of the Court
that the kidnapping conviction was vacated because the only confinement, restraint,
or removal was that inherent in the armed robbery and rape, for which the defendant
was convicted.
In State v. Payton, the defendant was convicted of first-degree burglary, two
counts of robbery with a dangerous weapon, and two counts of second-degree
kidnapping. 198 N.C. App. 320, 320-21,
679 S.E.2d 502, 502 (2009). The evidence
was that during a burglary the defendant and two accomplices encountered the home
owner and her daughter in the bathroom area and, at gun point, “instructed the
women to move into the bathroom, lie on the floor, and not look at them.”
Id. at 321,
679 S.E.2d at 503. The burglar with a gun then remained outside the bathroom while
the other two burglars retrieved the homeowner’s purse. The burglars then ordered
the victims not to look at them, closed the bathroom door, and removed a television
from the bedroom as they left the house.
Id. On appeal, this Court held that moving
the victims from the bathroom area, “which was described as a foyer leading from the
bathroom to the bedroom,”
id., into the bathroom “was an inherent part of the robbery
and did not expose the victims to a greater danger than the robbery itself.”
Id. at 328,
679 S.E.2d at 507. The Court described the movement of the women as “a ‘technical
asportation,’ such as seen in Irwin, Ripley, and Cartwright.”
Id.
In State v. Featherson, the defendant was convicted of robbery with a
dangerous weapon, second-degree kidnapping, and conspiracy to commit armed
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Opinion of the Court
robbery after she helped her boyfriend and a mutual friend rob the Bojangles
restaurant where the defendant worked. 145 N.C. App. 134, 135-36,
548 S.E.2d 828,
829-30 (2001). During the robbery, the defendant’s boyfriend forced the defendant
and another employee to the floor and loosely bound them together with duct tape
while the mutual friend forced the manager to the office and ordered her to open the
safe.
Id. at 135,
548 S.E.2d at 830. Although not specifically raised or argued on
appeal, this Court addressed the sufficiency of the evidence supporting the
defendant’s conviction for kidnapping the employee who was bound to the defendant
in the course of the robbery and held the trial court erred in denying the defendant’s
motion to dismiss the kidnapping charge.
Id. at 139,
548 S.E.2d at 832. This Court
reasoned that, where the employee was already in the same room where she was
bound to the defendant and was bound to the defendant in such a manner as to allow
them to escape quickly, “[the employee] was exposed to no greater danger than that
inherent in the armed robbery itself, nor was she subjected to the kind of danger and
abuse the kidnapping statute was designed to prevent.”
Id. at 140,
548 S.E.2d at 832
(internal quotation marks and brackets omitted). Thus, “the restraint and movement
of [the employee] was an inherent and integral part of the armed robbery[]” and “not
sufficient to sustain a conviction for second-degree kidnapping.”
Id. at 139-40,
548
S.E.2d at 832.
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Opinion of the Court
Relying first on Cartwright, defendant contends the robberies in the present
case began as soon as he and his accomplices entered the residence and ordered
Cowles and Pina to turn over their cell phones. Consequently, defendant claims any
movement or restraint thereafter occurred during the course of the robberies.
Defendant then relies on Ripley and Irwin to argue that moving victims to the
location of other victims or to the area where the stolen property was located is
integral to the robbery. Lastly, defendant relies on Featherson and Payton to support
his contention that the restraint of Cowles and Pina in the corner of the upstairs
bedroom while the other intruders searched the residence was not independent of the
robbery.
While the movement and restraint of Cowles and Pina may have occurred
during the course of all the robberies, we are not convinced that the removal of Cowles
and Pina from downstairs to upstairs was integral to or inherent in the armed
robberies of Cowles and Pina, or the armed robberies of Collins and Martin.
First, the evidence tends to show that the robberies, or attempted robberies, of
Cowles and Pina took place entirely downstairs when the robbers demanded Cowles’
and Pina’s cell phones, to no avail. There is no evidence that any other items were
demanded from Cowles or Pina at any other time and Cowles testified that nothing
was taken from his person. Thus, it is difficult to accept defendant’s argument that
the movement of Cowles and Pina was integral to the attempted robberies of Cowles
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Opinion of the Court
and Pina. We emphasize attempt because defendant was convicted of attempted
robbery with a firearm of Cowles; defendant was acquitted of robbery with a firearm
of Pina. In fact, the evidence in this case is clear that defendant and the other
intruders entered the residence in search of Collins. In the light most favorable to
the State, it appears the removal of Cowles and Pina from downstairs to the upstairs
was neither integral in the robberies of them, nor the robberies of Collins and Martin.
Second, we find the removal of Cowles and Pina from downstairs to upstairs
by defendant and the other intruders to be more significant than the movement of
victims from one side of a motel lobby door to the other in Ripley or from a bathroom
foyer into the adjoining bathroom in Payton. Therefore, we hold the present case is
distinguishable from those cases. We further note that in Ripley, the second group of
patrons were robbed once they were forced into the motel lobby, Ripley, 172 N.C. App.
at 455,
617 S.E.2d at 108, whereas in this case, nothing was taken from Cowles or
Pina once they were moved upstairs. The present case is more similar to State v.
Allred,
131 N.C. App. 11,
505 S.E.2d 153 (1998), and State v. Davidson,
77 N.C. App.
540,
335 S.E.2d 518 (1985). In Allred, the defendant was convicted on several
kidnapping charges stemming from the armed robbery of a residence.
131 N.C. App.
at 15,
505 S.E.2d at 156. On appeal, this Court addressed the kidnapping of the
victims separately. Pertinent to this case, the Court held that the forced movement
of one victim from his bedroom to the living room and the subsequent restraint of that
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Opinion of the Court
victim on the couch was sufficient to uphold a kidnapping conviction. Id. at 21,
505
S.E.2d at 159. This Court reasoned that because nothing was taken from the victim
and there was no evidence of an attempt to rob the victim, the removal of the victim
“was not an integral part of any robbery committed against him, but a separate course
of conduct designed to prevent [the victim] from hindering [the] defendant and his
accomplice from perpetrating the robberies against the other occupants.”
Id. In so
holding in Allred, this Court cited its decision in Davidson, in which this Court upheld
kidnapping convictions where, during the robbery of a clothing store, the defendant
and accomplices forced a store owner, an employee, and a customer at gunpoint to go
from the front of the store to a dressing room in the rear of the store, bound the
victims, and robbed the victims of cash and jewelry before taking money from the
cash register and merchandise from tables, and fleeing. Davidson,
77 N.C. App. at
541,
335 S.E.2d at 519. In holding the trial court did not err in denying motions to
dismiss the kidnapping charges, this Court reasoned that the removal of the victims
to the dressing room was not an inherent and integral part of the robbery because
none of the property was kept in the dressing room.
Id. at 543,
335 S.E.2d at 520.
This Court instead viewed the removal of the victims as a “separate course of conduct
designed to remove the victims from the view of [a] passerby who might have
hindered the commission of the crime.”
Id.
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Opinion of the Court
The reasoning in Allred and Davidson applies equally in the present case.
Because nothing further was sought, nor taken, from Cowles and Pina after they were
ordered to give up their cell phones, it appears the only reason to remove Cowles and
Pina to the upstairs was to prevent them from hindering the subsequent robberies of
Collins and Martin.
Third, we are not persuaded that Irwin and Ripley apply in this case.
Defendant relies on Irwin and Ripley for the propositions that moving victims to an
area where the property taken is located or to an area where other victims are located
are inherent and integral parts of the robbery. Defendant’s takeaways from those
cases are imprecise and oversimplified. In Irwin, the Court made clear that the
removal of the drugstore employee from the cash register area to the prescription
counter in the back of the drugstore was an inherent and integral part of the
attempted armed robbery because the defendant needed the employee to open a safe
in order to complete the defendant’s objective of obtaining drugs. 304 N.C. at 103,
282 S.E.2d at 446. In this case, there is no evidence that it was necessary to move
Cowles and Pina upstairs to complete the robbery of Collins and Martin. In affirming
this Court in Ripley, our Supreme Court held the movement of the second group of
patrons from one side of the motel lobby door to the other was not legally sufficient
to support separate kidnapping convictions because the robbery began the moment
an accomplice drew a firearm and the movement of the second group of patrons “was
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STATE V. CURTIS
Opinion of the Court
‘a mere technical asportation’ that was an inherent part of the robbery defendant and
his accomplices were engaged in.” 360 N.C. at 340,
626 S.E.2d at 294. Yet, we find
it significant that the second group of patrons in Ripley was robbed after they were
moved into the lobby. There was no purpose in the present case to move Cowles and
Pina upstairs besides to prevent them from hindering the robberies of Collins and
Martin.
Lastly, we note that the removal of Cowles and Pina upstairs did subject them
to greater danger. Although our Court has acknowledged that the display of a firearm
or threatened use of a firearm does not subject the victims to greater danger than
that inherent in an armed robbery, see Ripley, 172 N.C. App. at 457-58,
617 S.E.2d at
109, the evidence here is that the other intruders assaulted the victims with
handguns after Cowles and Pina were escorted upstairs. Thus, in the light most
favorable to the State, Cowles and Pina were subjected to greater danger as a result
of their removal to the upstairs of the residence.
III. Conclusion
In the light most favorable to the State, the evidence in this case is sufficient
to sustain the separate second-degree kidnapping convictions. Thus, the trial court
did not err in denying defendant’s motions to dismiss.
NO ERROR.
Judge STEPHENS concurs.
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STATE V. CURTIS
Opinion of the Court
Judge HUNTER, Jr., dissents.
- 21 -
No. COA15-279– State v. Curtis
HUNTER, JR., Robert N., Judge, Dissenting.
Defendant was indicted for two counts of second degree kidnapping. The first
indictment charges him with kidnapping Refegio Pina in connection with the
attempted armed robbery of Christopher Cowles’s cell phone. The second indictment
charges Defendant with kidnapping Christopher Cowles, Count I, “by using,
displaying, or threatening the use or display of a firearm and the defendant did
actually possess the firearm about the defendant’s person.” Count II is an assault
with a deadly weapon charge alleging Defendant struck Collins in the head with a
handgun. Count III is an assault with a deadly weapon charge alleging Defendant
struck Pina in the head with a handgun. While the attempted armed robbery against
Cowles took place in the downstairs of the home, the assaults against Collins and
Pina took place upstairs. In an indictment charging kidnapping, the State does not
have to “set forth . . . the specific felony that the kidnapping facilitated.” State v.
McRae, 231 N.C. App. 602,
752 S.E.2d 731 (2014) (citation omitted). Nonetheless, the
armed robbery of Cowles, and the assaults on Collins and Pina are contained in the
kidnapping indictments and we should examine their factual bases as predicates for
the kidnapping charges.
As the majority opinion points out, all of the criminal acts took place within
Martin’s home. The majority makes a distinction that the asportation of Pina and
Cowles took place when they were moved from the downstairs living room to the
STATE V. CURTIS
HUNTER, JR., Robert N., J., dissent
upstairs bedroom. The majority contends these asportations were separate acts from
the attempted robbery against Cowles, which occurred downstairs, and the assault
on Collins, which occurred upstairs. In my view, these individual crimes occurred
throughout the home and were all part of an overall plan to rob Collins inside the
home. I dissent because our precedent holds that all criminal acts that are part of a
robbery transaction cannot be so carefully parsed as to create separate kidnapping
crimes. See State v. Irwin, 304 N.C. 93, 103,
282 S.E.2d 439, 446 (1981); State v.
Ripley,
172 N.C. App. 453,
617 S.E.2d 106 (2005), affirmed,
360 N.C. 333,
626 S.E.2d
289 (2006). To adopt the majority’s view would make the technical asportation
defense under the double jeopardy clause incapable of consistent application and
render it judicially unmanageable.
I agree that the majority has cited the appropriate test to be applied from
Ripley, 360 N.C. at 340, 626 S.E.2d at 293–94. It is clear the restraint of Pina and
Cowles “facilitated” Defendant’s ability to rob Collins. Defendant transferred Pina
and Cowles to prevent them from calling for help during the robbery. It is difficult to
understand how putting them upstairs while the robbery was in progress placed them
in a heightened danger. If one were to apply the rule advanced by the majority here,
it is clear Defendant was indicted for kidnapping Cowles in connection with
assaulting Collins upstairs by striking him in the head with a handgun. The analysis,
as I understand the majority opinion, would entitle Defendant to a have at least one
2
STATE V. CURTIS
HUNTER, JR., Robert N., J., dissent
of the kidnapping judgments arrested. I think aptly the Supreme Court precedent
would require both kidnapping charges be arrested and we should remand the case
to the trial court for a new sentencing hearing.
3
